Opinion
ID# 9903023368
June 7, 2002
RESENTENCING ORDER
1. The Supreme Court, by Order of April 22, 2002, remanded this case to the Superior Court "for resentencing on [Defendant's] murder conviction." (ORDER) at 13.
2. Defendant was convicted by a jury of Murder Second Degree (title 11, section 635 of the Delaware Code) and Possession of a Deadly Weapon During the Commission of a Felony ("PDWDCF") (title 11, section 1447 of the Delaware Code). This Court then sentenced Defendant to 15 years for each crime. Defendant subsequently appealed from his conviction; the Supreme Court affirmed with respect to Defendant's conviction of Murder Second Degree and reversed with respect to the conviction of PDWDCF, as Defendant had been prosecuted and convicted of PDWDCF more than five years after the crime was committed, a violation of the time limitation contained in title 11, section 205(b)(1) of the Delaware Code.
James Christopher DeAngelo v. State, Del. Supr., No. 343, 2000, Berger, J. (Apr. 22, 2002) (ORDER) at 12-13.
3. The Supreme Court further stated:
In White v. State, this Court held that "[a]fter a related sentence has been vacated on appeal, a trial judge may resentence a defendant up to the combined duration of the original sentences without violating the constitutional prohibition against double jeopardy." [citation omitted] We conclude that White controls the result here. . . .(ORDER) at 12.
576 A.2d 1322 (Del. 1990).
4. On this issue, it has been said that:
Resentencing per se does not constitute multiple punishment because the double jeopardy protection against multiple punishment focuses on the amount of punishment inflicted and not the number of proceedings involved in imposing punishment. The limits on the amount of punishment imposed, however, do necessitate a two-prong analysis of resentencing proceedings. First, at resentencing, a defendant must receive credit for time he has already served. Second, after resentencing, a defendant must not face a total punishment any greater than the maximum authorized by the legislature. Aside from these quantitative requirements, the double jeopardy guarantee against multiple punishment poses no barrier to resentencing defendants on the surviving counts of a successful appeal.
Kurt Lee Weinmann, Note, Resentencing on Surviving Valid Counts After a Successful Appeal: A Double Jeopardy and Due Process Analysis, 69 Cornell L. Rev. 342, 350 (1984).
One potential interest protected by the double jeopardy prohibition is a defendant's "legitimate expectation of finality" in a previously-imposed sentence. An illustration of when a resentencing in a later proceeding would upset a defendant's "legitimate expectation of finality" would occur "where a judge imposes only a 15 year sentence under a statute that permitted 15 years to life, has second thoughts after the defendant serves the sentence, and calls him back to impose another 10 years."
See United States v. DiFrancesco, 449 U.S. 117, 136-37 (1989) (holding that the defendant there had no "legitimate expectation of finality" in a previously-imposed sentence when the defendant knew that a provision included in the federal statute under which he was convicted provided that a final determination of his sentence would not come until after an appeal).
Jones v. Thomas, 491 U.S. 376, 392 (1989) (Scalia, J., dissenting).
However, a leading commentator has written:
. . . courts have rejected a defendant's reliance on an expectation of finality where the sentence being revised upward after appeal is part of a "sentencing plan" for a multi-count conviction. Thus, where defendant was convicted on several counts and then inappropriately sentenced on one count, double jeopardy does not bar modification of the sentences on remand to produce a sentencing package of imprisonment and probation equivalent to that originally imposed. The defendant is seen here as challenging through the appeal the combined sentence on the total conviction, thereby opening the door to resentencing on the affirmed counts where the "sentencing package" has been altered by the partial reversal of the conviction.
5 Wayne R. LaFave et al., Criminal Procedure § 26.7(c), at 818 (2d ed. 1999).
Relatedly, the Delaware Supreme Court stated in White that while due process imposes some limitations on a trial judge resentencing a defendant on a criminal charge after a "related sentence" has been vacated on appeal, the due process rule "does not . . . prevent a judge from resentencing a defendant . . . when the new sentence is no greater than the original."
White, 576 A.2d at 1329.
5. Here, the original 15-year sentence for PDWDCF had been part of a 30-year "sentencing plan" for a multi-count conviction. Applying the above principles, the Court resentences Defendant to 20 years for the conviction of Murder Second Degree, with credit for time served, for the reasons more fully set forth on the record at the time of resentencing today. The sentencing order of June 16, 2000 as to Criminal Action Number IN99-04-1179 is VACATED and a separate computer-generated resentencing order that resentences Defendant to 20 years at Level V with credit for time served is entered contemporaneously herewith.
IT IS SO ORDERED.